DCIT, Circle- 23(2), New Delhi V. Skyline Infratech Pvt. Ltd., New Delhi

ITA 5820/DEL/2017

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 6702 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2022
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2014-2015
• Appeal Filed On: 10-09-2017
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 69; 144; 142(1); 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘G’ NEW DELHI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA No.5820/Del/2017 Assessment Year: 2014-15 DCIT, Circle -23(2), New Delhi Vs. M/s. Skyline Infratech Pvt. Ltd., B-12, Greater Kailash Enclave -1, New Delhi PAN :AAFCS2803D (Appellant) (Respondent) ORDER PER SAKTIJIT DEY, JM: This is an appeal by the Revenue against order dated 12.06.2017 of learned Commissioner of Income Tax (Appeals)-30, New Delhi, pertaining to assessment year 2014-15. Appellant by None Respondent by Sh. H.K. Chaudhary, CIT (DR) Date of hearing 14.03.2022 Date of pronouncement 17.03.2022 2 ITA No.5820/Del/2017 AY: 2014-15 2. When the appeal was called for hearing, none appeared on behalf of the assessee to represent the case. On perusal of record, it is noticed, though, the appeal came up for hearing on four earlier occasions, i.e., on 03.03.2021, 27.07.2021, 07.10.2021 and 22.12.2021, however, every time the assessee remained absent. Despite issuance of notice repeatedly, not only through postal mode, but also through the office of learned Departmental Representative. In spite of the fact that the proceeding of 22 nd December, 2021, adjourning the case to 14 th March, 2022 was uploaded in the official website, still, the assessee remained absent when the appeal was called for hearing today, i.e., 14.03.2022. These facts reveal a complete lack of interest of the assessee to pursue the present appeal. Considering assessee’s lack of interest and also the fact that the appeal is pending since last five years, we proceed to dispose of the appeal ex-parte qua the assessee after hearing learned Departmental Representative and perusing materials on record. 3. Only effective ground raised by the assessee reads as under: “1. “ The Ld. CIT (A) erred in deleting the addition of Rs. 14,43,56,281 /- on account of undisclosed income, Rs.58,47,278/- on account of unexplained expenditure u/s 69-C of the I.T. Act and 3 ITA No.5820/Del/2017 AY: 2014-15 Rs.6,74,35,815/- on account of unexplained investment u/s 69 of the 1. T. Act made by the AO and admitting and relying on the additional grounds raised & additional evidences produced by the assessee during the course of appellate proceedings in contravention to Sub-rule 1 and also in contravention to Sub-rule 3 of Rule 46A of I.T. Rules, 1962, which provides the conditions failing which no additional /documents shall be admitted.” 4. Briefly the facts are, the assessee is a resident company. For the assessment year under dispute, the assessee filed its return of income on 30.11.2014, disclosing total income of Rs.1,62,42,280/-. The return of income filed by the assessee was selected for scrutiny. In course of assessment proceeding, the Assessing Officer issued statutory notices under section 142(1) and section 143(2) of the Income-tax Act, 1961 (for short ‘the Act’) with detailed questionnaire. However, none of the notices issued by the Assessing Officer were complied with. Since, the assessee remained totally unresponsive, the Assessing Officer intended to complete the assessment under section 144/143(3) of the Act, to the best of his judgment. However, before proceeding further, he issued a show-cause-notice to the assessee through mail, not only to the assessee, but to his Directors and Auditors. Still, there was no compliance by the assessee. 5. Finding no other alternative, the Assessing Officer proceeded to complete the assessment under section 144/143(3) of the Act 4 ITA No.5820/Del/2017 AY: 2014-15 to the best of his judgment by making number of additions aggregating to Rs.21,76,39,374/-, resulting in determination of total income of Rs.23,38,81,650/-. Against the assessment order so passed, assessee preferred an appeal before learned Commissioner (Appeals). After considering the submissions of the assessee, learned Commissioner (Appeals), deleted the additions made by the Assessing Officer. 6. Before us, learned Departmental Representative submitted, in course of assessment proceeding, the assessee neither appeared, nor complied with various queries raised by the assessee. Whereas, before learned first appellate authority, assessee made submissions and furnished evidences to contest the additions made by the Assessing Officer. Accepting the submissions made and evidences furnished, learned Commissioner (Appeals) deleted the additions made by the Assessing Officer. Learned Departmental Representative submitted, in course of assessment proceeding, the assessee had not furnished any evidence whatsoever to reconcile various discrepancies available in CIB information. He submitted, before learned first appellate authority the assessee furnished fresh evidence and detailed submission, based on which, the additions 5 ITA No.5820/Del/2017 AY: 2014-15 were deleted without giving any opportunity to the Assessing Officer to examine assessee’s submissions and fresh evidences furnished before the appellate authority. Thus, he submitted, there is a clear violation of Rule 46A(3), for which, the issues have to be restored back to the first appellate authority. 7. We have considered submissions of learned Departmental Representative and perused the materials on record. Undisputedly, the Assessing Officer had in his possession certain information indicating that the assessee has not correctly computed its taxable income. Therefore, the Assessing Officer had issued notices under section 142(1)/143(3) with detailed questionnaire seeking clarification from the assessee. However, it is a fact on record that neither did the assessee attend the assessment proceeding, nor furnished any reply to the queries raised by the Assessing Officer. Therefore, the Assessing Officer proceeded to complete the assessment under section 144 of the Act to the best of his judgment, based on materials available on record. As it appears, before learned first appellate authority, the assessee not only furnished detailed submission contesting the additions made by the Assessing Officer, but also furnished fresh evidences, which the Assessing Officer never had opportunity to 6 ITA No.5820/Del/2017 AY: 2014-15 examine. Though, as per the mandate of Rule 46A(3), learned Commissioner (Appeals) is duty-bound to give an opportunity to the Assessing Officer to examine the fresh evidences filed by the assessee and have his say on the authenticity of such evidences, however, prima face, it appears that no such opportunity was extended to the Assessing Officer. Purely based on the submissions made and the evidences furnished at the appellate stage, learned Commissioner (Appeals) has deleted the additions. Thus, in our view, not only there is gross violation of Rules of Natural Justice but the mandate of Rule 46A(3) has been bypassed. In view of the aforesaid, we are inclined to set aside the impugned order of learned Commissioner (Appeals) and restore the issues to the file of learned Commissioner (Appeals) for de novo adjudication. 8. It is made clear, in case learned Commissioner (Appeals) intends to rely upon any fresh evidence filed by the assessee in course of appellate proceeding, he must provide opportunity to the Assessing Officer to examine them and submit a report on the acceptability or otherwise of assessee’s claim based on such evidence. Needless to mention, the assessee must also be given a 7 ITA No.5820/Del/2017 AY: 2014-15 fair opportunity of being heard before deciding the issues. Grounds are allowed for statistical purposes. 9. In the result, the appeal is allowed for statistical purposes. Order pronounced in the open court on 17 th March, 2022 Sd/- Sd/- (DR. B.R.R. KUMAR) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 17 th March, 2022. RK/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi